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Pundits signal SCOTUS poised to strike down DOMA

POLITICO Prop. 8 report

While it’s impossible to predict with confidence how the court will rule before it rules, the 80 minutes of arguments suggest that procedural — not substantive — questions were upfront in the minds of at least five justices.

And if they decide the case on procedure, the impact could vary widely — from a narrow victory for gay-marriage supporters in California to opening a door for its opponents to retry their case with the public.

That makes the technical legal questions in front of the justices just as pressing as the emotionally heated debate over whether states can or cannot deny a gay couple the right to marry.

Still, it’s difficult to infer what route a majority of justices will settle on.

“If you get a straight answer from a lawyer about what’s going to happen, I’d love to know,” said University of Richmond law professor Kevin Walsh, a former clerk to Justice Antonin Scalia.

Legal experts pointed to two main ways to wiggle out of a definitive ruling on same-sex marriage.

The other option is to rule that Prop 8’s defenders had no right to stand in the shoes of California officials who declined to defend the ballot measure in court.

“There is a big difference between DIGing it and finding there was no standing to appeal,” said Seton Hall law professor Ed Hartnett.

Ruling that Prop 8’s proponents lacked standing to appeal could produce a messy result. The 9th Circuit’s decision would most likely be nullified and the case would be returned to the district court. Its ruling that Prop 8 is unconstitutional would presumably stand, but it could end up being limited to only the couple of counties and state officials named as defendants in the lawsuit. That could leave same-sex couples seeking marriage licenses in more conservative parts of California with no clear right to get them.